Challenging an award

In Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH the applicant, Broda, sought to overturn an arbitration award made in favour of Toepfer. Broda relied upon s72 of the Arbitration Act 1996 to seek declaratory relief, and upon s67 of the 1996 Act to appeal against the award. At first instance, [2009] EWHC 3318 (Comm) (discussed in the May 2010 issue of Arbitration Law Monthly) Teare J rejected the applications under each of these sections on procedural grounds, the former because Broda had participated in the arbitration and the latter because Broda was out of time. Broda’s appeal to the Court of Appeal, [2010] EWCA Civ 1100, discussed in the following paragraphs, has now been dismissed for more or less the same reasons given by the learned judge. The leading judgment was given by Stanley Burnton LJ.

Broda: the facts

In October 2007 Toepfer commenced GAFTA arbitration proceedings against Broda for breach of a contract for the supply of wheat by Broda to Toepfer, which Toepfer asserted had been made in February 2007 and subsequently varied. Broda’s response was to deny the existence of the contract, in that no price had been agreed, and in December 2007 Broda commenced proceedings in Russia for a declaration to that effect. On 3 January 2008 Toepfer filed its first submission with GAFTA, seeking damages of US$5,462,668.35. On 31 January Cypriot lawyers acting for Broda wrote to GAFTA ‘without prejudice and with full reservation of rights’, disputing jurisdiction and seeking a stay of the arbitration until the Russian proceedings had been resolved.